Opinion
Case No.: 16cv2314-MMA (KSC)
12-15-2017
DANIEL CASTRO, Petitioner, v. SCOTT KERNAN, Secretary, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE;
[Doc. No. 22]
DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND
[Doc. No. 1]
DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
Petitioner Daniel Castro has filed a Petition for Writ of Habeas Corpus ("petition") pursuant to 28 U.S.C. § 2254, challenging his conviction for driving with a blood alcohol level ("BAC") of 0.08 percent or more and causing injury, pursuant to Cal. Vehicle Code § 23153(b). Doc. No. 1. Specifically, Petitioner claims his Fourth Amendment right was violated when "blood was taken and tested" without a warrant and that the trial court should have granted his motion to suppress evidence of his blood sample. Id. at 6. Respondent answered on the merits, requesting the petition be denied. Doc. No. 5. Petitioner did not file a traverse. See Docket.
The matter was referred to United States Magistrate Judge Karen S. Crawford for preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1), and Civil Local Rule HC.2. Judge Crawford has issued a thorough and well-reasoned Report recommending that the Court deny Petitioner's claim for relief and dismiss the petition. See Doc. No. 22.
Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), the Court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]." 28 U.S.C. § 636(b)(1); see also United States v. Remising, 874 F.2d 614, 617 (9th Cir. 1989). Objections to the Report and Recommendation were due no later than November 17, 2017. Doc. No. 22 at 7. To date, no objections have been filed. See Docket.
The Clerk of Court served Petitioner with a copy of the Report and Recommendation via U.S. Mail on October 18, 2017. See Doc. No. 22. --------
Accordingly, the Court concludes that Judge Crawford has issued an accurate report and well-reasoned recommendation. The Court ADOPTS the Report and Recommendation in its entirety and DENIES Petitioner's petition with prejudice.
CERTIFICATE OF APPEALABILITY
Rule 11 of the Federal Rules Governing Section 2254 Cases states that "the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability is not issued unless there is "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Under this standard, "a petitioner must 'show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted)). For the reasons set forth in the Report and Recommendation and incorporated herein, the Court finds that this standard has not been met and therefore DECLINES to issue a certificate of appealability in this case.
CONCLUSION
Based on the foregoing, the Court ADOPTS the Report and Recommendation in its entirety and DENIES Petitioner's petition with prejudice. The Court further DECLINES to issue a certificate of appealability.
The Clerk of Court is instructed to enter judgment accordingly and close this case.
IT IS SO ORDERED. Dated: December 15, 2017
/s/_________
Hon. Michael M. Anello
United States District Judge